Westinghouse Credit Corp. v. Kownslar
| Decision Date | 27 June 1973 |
| Docket Number | No. B--3647,B--3647 |
| Citation | 496 S.W.2d 531 |
| Parties | WESTINGHOUSE CREDIT CORPORATION, Petitioner, v. Juanita H. KOWNSLAR, Respondent. |
| Court | Texas Supreme Court |
Irion, Cain, Magee & Davis, Don W. Davis, Dallas, for petitioner.
Clark, West, Keller, Sanders & Ginsberg, David M. Ellis, Dallas, for respondent.
Westinghouse Credit Corporation obtained summary judgment in its action to enforce payment of five promissory notes against Juanita H. Kownslar, the guarantor of those notes. The court of civil appeals reversed and rendered judgment that Westinghouse take nothing. 484 S.W.2d 460. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.
In September 1965, Mrs. Kownslar gave Westinghouse a written agreement to guarantee 'prompt performance, payment and discharge of any and all obligations and agreements of Obligor (J & D Factory Outlet Mobile Homes, Inc.) . . . with you (Westinghouse) . . . now in force or hereafter made.' J & D executed and delivered a number of promissory notes to Westinghouse. By March 1967, all of the notes here pertinent, nine in number, were in default. In May 1967, Westinghouse filed suit against Mrs. Kownslar (then Juanita Blount) to collect the amount due on four of the notes in default. That litigation resulted in a judgment for Westinghouse which was affirmed by the court of civil appeals. Blount v. Westinghouse Credit Corporation, 432 S.W.2d 549 (Tex.Civ.App.--Dallas 1968, no writ).
In January 1971, Westinghouse filed this second suit against Mrs. Kownslar to collect the amount due on five other promissory notes. Mrs. Kownslar moved for summary judgment on the ground of res judicata. The trial court denied that motion and granted Westinghouse's motion for summary judgment on the notes. The court of civil appeals reversed the trial court's judgment and granted defendant's motion for summary judgment.
It is conceded that all nine of the notes were in default at the time of the first suit in 1967. The sole issue before this court is whether the judgment in the first litigation, granting Westinghouse's recovery against the guarantor on four notes, is a bar to the present action against the guarantor on the other five notes. Although both parties have referred to the principle as res judicata, we will refer to it as the doctrine of merger. Merger is that branch of res judicata which bars later action on claims which should have been litigated in an earlier action. 2 Freeman, Judgments, ch. X (5th ed. 1925). The question here is: must Westinghouse have sued on all nine notes in the first suit or else forfeit its claim against the guarantor with respect to those omitted?
It is Westinghouse's position that the action against Mrs. Kownslar is essentially an action on the notes; since each promissory note evidences a separate and distinct cause of action, Westinghouse is not guilty of splitting a cause of action. There is no doubt that separate suits by Westinghouse would lie against J. & D. Ferguson v. Culton, 8 Tex. 283 (1852); Kempner v. Comer, 73 Tex. 196, 11 S.W. 194 (1889); Restatement of Judgments § 62, comment i at 253; 2 Freeman, Judgments § 565 (5th ed. 1925); 1 Am.Jur.2d Actions § 135; 1 C.J.S. Actions § 103(c)(5). Westinghouse apprehends no reason why Mrs. Kownslar, who agreed to have her personal fortune respond for the debts of J & D, should have the advantage of a defense J & D would not have.
Mrs. Kownslar, on the other hand, argues that the suit is essentially an action on the guaranty agreement; since the guaranty agreement is a single contract, any action for breach of it must include all then-ascertainable claims for damages. Eastland County v. Davisson, 13 S.W.2d 673 (Tex.Comm'n App.1929, jdgmt. adopted); Texas & P.R. Co. v. Scoggin & Brown, 95 S.W. 651 (Tex.Civ.App.1906, no writ); Restatement of Judgments § 62, comment h at 250; 2 Freeman, Judgments § 606 (5th ed. 1925); 1 Am.Jur.2d Actions § 137; 1 C.J.S. Actions § 103(b)(2). She contends that any other rule would permit the whole range of vices inherent in a multiplicity of suits.
We proceed by two inquiries. We look first to see whether or not there is a Texas case Directly in point. We conclude there is not. By application of the narrow construction of precedent 1 appropriate to this doctrine, we find that the case is one of first impression.
Our second problem is whether the factual situation presented is such that the purposes of the doctrine of merger shall be frustrated absent enforcement of the bar. Ogletree v. Crates, 363 S.W.2d 431 (Tex.196...
To continue reading
Request your trial
-
Flores v. Edinburg Consol. Independ. School Dist.
...v. Crow Iron Works, 582 S.W.2d 768 (Tex.1979). Griffin v. Holiday Inns of America, 496 S.W.2d 535 (Tex.1973). Westinghouse Credit Corp. v. Kownslar, 496 S.W.2d 531 (Tex.1973). Abbott Laboratories v. Gravis, 470 S.W.2d 639 (Tex.1971). Ogletree v. Crates, 363 S.W.2d 431 (Tex. The traditional ......
-
Joiner v. Vasquez
...considerations would be substantially offended by the new action before it is precluded by res judicata. Westinghouse Credit Corp. v. Kownslar, 496 S.W.2d 531, 532 (Tex.1973). Here no compelling policy considerations are offended by reversing this denial of the bill of review and by permitt......
-
Flores v. Edinburg Consol. Independent School Dist.
...to a subsequent action unless it substantially contravenes one or more of these policy considerations. Westinghouse Credit Corp. v. Kownslar, 496 S.W.2d 531, 532 (Tex.1973); Gilbert at The instant case offends none of these policy considerations. Judicial economy is not wasted because the p......
-
Export-Import Bank of U.S. v. Advanced Polymer, Case No. 1:07CV1138.
...Morrow v. Fitzpatrick, 34 Ga.App. 801, 131 S.E. 189 (1926). Of particular relevance to the case at bar is Westinghouse Credit Corp. v. Kownslar, 496 S.W.2d 531 (Tex.1973). There, the defendant had guaranteed payment of a series of promissory notes and the noteholder had already received jud......